{"id":174975,"date":"2008-05-27T00:00:00","date_gmt":"2008-05-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vimal-chadha-vs-vikas-choudhary-and-another-on-27-may-2008"},"modified":"2017-01-22T14:01:33","modified_gmt":"2017-01-22T08:31:33","slug":"vimal-chadha-vs-vikas-choudhary-and-another-on-27-may-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vimal-chadha-vs-vikas-choudhary-and-another-on-27-may-2008","title":{"rendered":"Vimal Chadha vs Vikas Choudhary And Another on 27 May, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Vimal Chadha vs Vikas Choudhary And Another on 27 May, 2008<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (crl.)  966 of 2008\n\nPETITIONER:\nVimal Chadha\n\nRESPONDENT:\nVikas Choudhary and another\n\nDATE OF JUDGMENT: 27\/05\/2008\n\nBENCH:\nS.B. SINHA & LOKESHWAR SINGH PANTA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP (CRL) NO. 6832 of 2007)
\nREPORTABLE<\/p>\n
S.B. SINHA, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tHow to determine the age of a juvenile in delinquency within
\nthe meaning of the Juvenile Justice (Care and Protection of Children)
\nAct, 2000  (for short the Act) is in question in this appeal which
\narises out of a judgment and order dated 11th September, 2001 passed
\nby a learned Single Judge of the Delhi High Court in Criminal
\nRevision No. 156 of 2007 whereby and whereunder an order dated
\n20th January, 2007 passed by a learned Additional Session Judge,
\nDelhi, was set aside.\n<\/p>\n
3.\tAppellant before us is the first informant, the father of a boy,
\nParkash Chadha @ Sunny who was kidnapped for ransom and later on
\nmurdered. He was aged about 20 years.  He was found missing after
\nhe had gone out with his friends on 18th January, 2003.  A missing
\nreport was lodged on the said date.  On or about 19th January, 2003,
\nRespondent No.1 was suspected of involvement in the said crime by
\nthe police.  He, on the basis of the investigation carried out for the said
\npurpose charge-sheeted for commission of offence under Sections
\n302\/364\/34 of the Indian Penal Court by the Court.  Although the first
\ninformation report was lodged on 19th January, 2003, the respondent
\nNo.1 was arrested on 4th May, 2003.  A charge sheet was filed on 22nd
\nJuly, 2003 wherein it was recorded that calls for payment of ransom
\nwere being made from time to time and last of such call for payment
\nof ransom was received on 11th March, 2003.  In regard to the finding
\nout of the dead body of Parakh Chadha DD No. 40 under Section
\n302\/201 of the Indian Penal Code was separately registered.\n<\/p>\n
4.\tUpon his production, the respondent No.1 did not claim himself
\nto be a juvenile.  Charges were framed.  The prosecution started
\nadduction of evidence on or about 3rd February, 2005.   Only on 31st
\nMay, 2005 respondent No.1 herein filed an application for transfer of
\nthe case to the Juvenile Board on the plea that he was a juvenile on
\nthe date of occurrence.  A school leaving certificate was also
\nproduced.  The Learned Additional Sessions Judge, trying the case,
\ndirected the Investigating Officer to submit a report.  The report
\npursuant thereto reads as under :-\n<\/p>\n
Inquiry conducted into the matter revelas
\nthat Vikas Choudhary was admitted to
\nClass-I in Lawrence School of Ashok Vihar
\nPhase-I, Delhi vide Admission NO.412.  The
\ndate of birth showed in the register
\n20.01.1985.  There is no birth certificate or
\nother document available in support of date
\nof birth.  The date of admission is
\n17.04.1989.\n<\/p>\n
5.\tThe learned Sessions Judge was not satisfied therewith.  The
\nInvestigating Officer was directed to get the respondent No.1
\nmedically examined for getting his age determined.  Pursuant thereto
\nor in furtherance thereof, the respondent was examined medically.  A
\nreport was submitted on 9th August, 2005.  It reads as under :-\n<\/p>\n
     \t\tHRH Medical Report
\nAdvise X-Ray as per dorsal spine, medial
\nends of clavicles, V-C Scapulae in bony
\nfeature upper ending element, lower ends
\nof radius iliac crusts have fixed.  Interior
\nangle of scapula, acromina processes, iliac
\ncrests, medial ends of clavicles are ischail
\nlubordsiles show fusion of their epiphysis.
\nUpper end lower surfaces of vertera show
\nno fusion of their end plates.  Radiological
\nages in between 22-25 yrs. <\/p>\n
\tThe learned Judge on the said report, opined :-\n<\/p>\n
The report of Dr. P.K. Jain, Senior
\nRadiologist about the bone age X-Ray
\ndetermination of accused Vikas Choudhary
\nreceived today.  As per the report, the age of
\naccused\/applicant Vikas Choudhary on the
\ndate of his examination was between 22-25
\nyears.  On calculation, the age of accused
\nVikas Choudhary on the date of incident, i.e.
\n18.01.2003 come to be 19 years and 5
\nmonths.  So far as the matriculation
\ncertificate of accused\/applicant Vikas
\nChoudhary is concerned, it is a common
\npractice that parents mention the age of their
\nchildren on the lesser side in the school in
\norder to avail the benefit in the services later
\non.  Hence, no weightage can be given to the
\nmatriculation certificate in the presence of
\nmedical evidence, which shows that the
\napplicant\/accused Vikas Choudhary was
\nmore than 19 years of age on the date of
\nincidents.\n<\/p>\n
Considering the totality of the
\ncircumstances, I prima facisely hold that the
\npresent applicant\/accused Vikas Choudhary
\nwas major at the time of occurrence.  The
\napplication for sending him to the Juvenile
\nCourt stands dismissed.<\/p>\n
6.\tOn a revision application filed thereagainst before the High
\nCourt, it by an order dated 31st August, 2006 set aside the said order
\nand directed :-\n<\/p>\n
Anyhow, these are the matters which
\nrequire a more detailed examination
\nparticularly in view of the fact that there
\nexists a School Certificate wherein the date
\nof birth of the petitioner has been given.
\nThe veracity of the School Certificate and
\nTransfer Certificate submitted by the
\npetitioner is not doubted.  In these
\ncircumstances, the impugned order is set
\naside and the learned Additional Sessions
\nJudge is directed to consider the matter
\nafresh and if it appears to the learned
\nAdditional Sessions Judge that the petitioner
\nis a Juvenile on the basis of the material on
\nrecords, he is required to be sent to the
\nJuvenile Justice Board for further
\nproceedings.<\/p>\n
7.\tAgain by reason of an order dated 20th January, 2007 the
\nlearned Judge held :-\n<\/p>\n
As per School Leaving Certificate, the date
\nof birth of the accused is 20.01.1985.  The
\nonly question before the Court is whether
\nthe School Leaving Certificate of the
\naccused has to be relied upon or Bone Age
\nX-Ray record is to be relied upon.  School
\nLeaving Certificate of the accused was
\nverified during the proceedings and report
\nwas filed by IO wherein it has been
\nmentioned that no birth certificate or other
\ncertificate is available in support of the date
\nof the accused in the School record.<\/p>\n
\tRelying on the decision of this Court in Pratap Singh  v.  State
\nof Jharkhand and another,  [ (2005) 3 SCC 551 ] it was held :-
\nFrom the judgments cited by the learned
\nAPP, it is clear that to ascertain the age of
\naccused persons only School Leaving
\nCertificate cannot be relied upon alone and
\nthe court has to see all the other facts and
\ncircumstances along with the other material
\nplaced on record.  If assuming that the age
\nof the accused was 22 years on the date of
\nhis examination as per Bone Age X-ray
\nExamination report, after giving margin of
\ntwo years from the age reported upto 25
\nyears, even then n the date of alleged
\noffence, he was more than 18 years of age.
\nAccording to the conviction slip dated
\n04.05.2003, of the accused, which was filled
\non the basis of the information given by the
\naccused, the age of the accused has been
\nmentioned as 19 years and even after
\ncalculation, he was more than 18 years of
\nage on the date of alleged offence.  <\/p>\n
8.\tRespondent moved the High Court again in revision.\n<\/p>\n
     By reason of the impugned judgment dated 11th September,
\n2007, the High Court held :-\n<\/p>\n
As far as the ossification test and the
\nmedical evidence is concerned there too the
\napproach of the learned Additional Sessions
\nJudge is in my opinion, erroneous.\n<\/p>\n
According to the expert the petitioner was
\n22-25 years on the date of his examination
\ni.e. 9.8.2005.  The Learned Additional
\nSessions Judge acknowledged that such
\ndetermination is a rough estimate and the
\nindividual would have to be given benefit by
\ndeducing some years but proceeded to do so
\nfrom the outer age indicated.  This is an
\nincorrect approach as the juvenile is entitled
\nto beneficial interpretation in such case.
\nTherefore, the two years deduction made
\nwould have be (sic) from the lower age
\nindicated namely, 22 years.  That would
\nmean that as in August, 2005 the Petitioner
\nwas probably 20 years; as on the date of
\nincident, (20.01.2003) in all probability he
\nwas less than 18 years.  This  interpretation
\nis also in consonance with the claims based
\non the Board Certificate relied upon by the
\nPetitioner.:\n<\/p>\n
9.\tMr. Sushil Kumar, learned senior counsel appearing on behalf
\nof the appellant would submit :-\n<\/p>\n
1)\tThat the High Court committed a serious error in passing
\nthe impugned judgment in so far as it failed to take into
\nconsideration that from the conduct of the respondent
\nNo.1 it is evident that he did not claim to be a juvenile at
\nthe first instance and only when the trial started, he filed a
\npurported school leaving certificate, which is suspect.\n<\/p>\n
2)\tThe approach of the High Court in analysing the medical
\nreport is not correct as the starting point should not have
\nbeen taken to be 22 but should have been taken at 25.\n<\/p>\n
3)\tIn any event, having regard to the provisions contained in
\nSection 472 of the Code of Criminal Procedure the
\noffence must be held to have been a continuous one and
\nas ransom calls were being made till 11th May, 2003, the
\nsaid date should be considered to be the cut off date for
\nthe purpose of determination of the age.\n<\/p>\n
10.\tMr. G.K. Kaushik, learned counsel appearing on behalf of
\nrespondent No.1 on the other hand would submit:\n<\/p>\n
1.\tThat at all stages 18th January, 2003 has been taken to be
\nthe date of occurrence, and even the charges have been
\nframed on the premise that the occurrence had taken
\nplace on the said date.\n<\/p>\n
2\tThe conclusion of the High Court that the appellant is, on
\n17th January, 2003, would be 17 years 5 months
\ncorroborates with the medical report that if on the date of
\nexamination his examination, respondent No.1 is taken to
\nbe 22 years of age.\n<\/p>\n
11.\tDetermination of age of a juvenile in delinquency must be
\ndetermined as and when an application is filed.  In view of the
\ndecision of the Constitution Bench in Pratap Singh (supra) it is no
\nlonger res integra that that the relevant date for determination is the
\nage of the accused would be the date on which the occurrence took
\nplace.\n<\/p>\n
12.\tWhat would be the date on which offence has been committed
\nin a given case has to be decided having regard to the fact situation
\nobtaining therein.\n<\/p>\n
     Indisputably our Criminal Laws contemplate a continuing
\noffence.  Section 472 of the Code of Criminal Procedure reads as
\nunder :-\n<\/p>\n
472. Continuing offence.\n<\/p>\n
In the case of a continuing offence, a fresh
\nperiod of limitation shall begin to run at
\nevery moment of the time during which the
\noffence continues. <\/p>\n
     If an offence has been a continuing offence, then the age of the
\njuvenile in delinquency should be determined with reference to the
\ndate on which the offence is said to have been committed by the
\naccused.  It may be true that the prosecution proceeded on the basis
\nthat the entire offence had taken place on 18th January, 2003.  We
\nhave, however, been taken through the charge-sheet, from a perusal
\nwhereof it appears that the appellant had been getting calls for
\npayment of ransom despite the fact that the deceased had, in the
\nmeanwhile, been killed.\n<\/p>\n
     It is one thing to say that a missing report has been filed on a
\nparticular date but it is another thing to say that in a case of this nature
\nwhen the actual offence(s) had taken place would remain uncertain.\n<\/p>\n
     Giving calls for payment of ransom is an offence.  In case of
\nmurder coupled with abduction in a given case may be considered to
\nbe a continuous offence.\n<\/p>\n
13.\tThis Court in a catena of decisions have laid down the criteria
\nfor determining the age.  We would notice some of them.
\n\tIn Ravinder Singh Gorkhi  v.  State of U.P.,<\/a> [(2006) 5 SCC 584]
\nthis Court opined :-\n<\/p>\n
38. The age of a person as recorded in the
\nschool register or otherwise may be used for
\nvarious purposes, namely, for obtaining
\nadmission; for obtaining an appointment; for
\ncontesting election; registration of marriage;
\nobtaining a separate unit under the ceiling
\nlaws; and even for the purpose of litigating
\nbefore a civil forum e.g. necessity of being
\nrepresented in a court of law by a guardian
\nor where a suit is filed on the ground that the
\nplaintiff being a minor he was not
\nappropriately represented therein or any
\ntransaction made on his behalf was void as
\nhe was a minor. A court of law for the
\npurpose of determining the age of a party to
\nthe lis, having regard to the provisions of
\nSection 35 of the Evidence Act will have to
\napply the same standard. No different
\nstandard can be applied in case of an
\naccused as in a case of abduction or rape, or
\nsimilar offence where the victim or the
\nprosecutrix although might have consented
\nwith the accused, if on the basis of the
\nentries made in the register maintained by
\nthe school, a judgment of conviction is
\nrecorded, the accused would be deprived of
\nhis constitutional right under Article 21 of
\nthe Constitution, as in that case the accused
\nmay unjustly be convicted.\n<\/p>\n
39. We are, therefore, of the opinion that
\nuntil the age of a person is required to be
\ndetermined in a manner laid down under a
\nstatute, different standard of proof should
\nnot be adopted. It is no doubt true that the
\ncourt must strike a balance. In case of a
\ndispute, the court may appreciate the
\nevidence having regard to the facts and
\ncircumstances of the case. It would be a duty
\nof the court of law to accord the benefit to a
\njuvenile, provided he is one. To give the
\nsame benefit to a person who in fact is not a
\njuvenile may cause injustice to the victim.
\n[Emphasis supplied]\n<\/p>\n
14.\tThis aspect of the matter has also been considered in Jitendra
\nRam alias Jitu  v.  Stateof Jharkhand, [ (2006) 9 SCC 428 ] wherein it
\nwas held :-\n<\/p>\n
20. We are, however, not oblivious of the
\ndecision of this Court in Bhola Bhagat v.
\nState of Bihar<\/a> wherein an obligation has
\nbeen cast on the court that where such a plea
\nis raised having regard to the beneficial
\nnature of the socially oriented legislation, the
\nsame should be examined with great care.
\nWe are, however, of the opinion that the
\nsame would not mean that a person who is
\nnot entitled to the benefit of the said Act
\nwould be dealt with leniently only because
\nsuch a plea is raised. Each plea must be
\njudged on its own merit. Each case has to be
\nconsidered on the basis of the materials
\nbrought on records.
\n(emphasis supplied)<\/p>\n
15.\tThis Court in Jyoti Prakash Rai @ Jyoti Prakash  v.  State of
\nBihar,  [ JT 2008 (3) SC 397 ] held :-\n<\/p>\n
It is in the aforementioned situation, we are
\nof the opinion that the test which may be
\napplied herein would be to take the average
\nof the age as opined by both the medical
\nboards.  Even applying that test, the age of
\nthe appellant as on 01.04.2001 would be
\nabove 18 years.\n<\/p>\n
     We, however, hasten to add that we
\nhave taken recourse to the said method only
\nfor the purpose of this case and we do not
\nintend to lay down any general proposition
\nof law in this behalf  As indicated
\nhereinbefore, in so doing, we have also
\ntaken into consideration the fact that the
\nappellant had filed documents in support of
\nhis claim that he was a juvenile but the same
\nwere found to be forged and fabricated
\nwhich is itself a factor to show that he was
\nmaking attempts to obtain a benefit to which
\nhe might not have been entitled to.<\/p>\n
     [ See also Balu @ Bakthvatchalu vs. State of  Tamilnadu,<\/a> [ JT
\n2008 (2) SC 321 ].\n<\/p>\n
16.\tThe question came up for consideration recently again in Jameel
\nv.  State of Maharashtra,<\/a>  [2007 (2) SCALE 32] wherein it has been
\nheld :-\n<\/p>\n
9.\tIt was furthermore submitted that
\nalthough the age of the appellant on the date
\nof the occurrence was more than sixteen
\nyears but below eighteen years, having
\nregard to the provision of the Juvenile
\nJustice (Care and Protection of Children)
\nAct, 2000, (for short, the 2000) it was
\nimperative on the part of the court to follow
\nthe procedures laid down therein.\n<\/p>\n
13.\tSo far as the submission of the
\nlearned counsel in regard to the applicability
\nof the 2000 Act, is concerned, it is not in
\ndispute that the appellant on the date of
\noccurrence had completed sixteen years of
\nage.  The offence having been committed on
\n16.12.1989, the 2000 Act has no application.
\nIn terms of Juvenile Justice Act, 1986,
\njuvenile was defined to mean a body who
\nhad not attained the age of sixteen years or a
\ngirl who had attained the age of eighteen
\nyears:.\n<\/p>\n
17.\tWe have, however, been informed that the effect of Model
\nRules having come into force and, if so, the applicability thereof may
\nhave to be considered in a given case but keeping in view the facts of
\nthe case, we are of the opinion that the matter may be considered
\nafresh in the light of the provisions of Section 472 of the Code of
\nCriminal Procedure by the learned trial court.\n<\/p>\n
     The judgment of the High court is set aside accordingly. The
\nappeal is allowed.\n<\/p>\n
\tApplications for modification\/clarification of
\norder dated 2.11.2007 and bail have become infructuous and are
\ndismissed as such.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Vimal Chadha vs Vikas Choudhary And Another on 27 May, 2008 Author: S Sinha Bench: S.B. Sinha, Lokeshwar Singh Panta CASE NO.: Appeal (crl.) 966 of 2008 PETITIONER: Vimal Chadha RESPONDENT: Vikas Choudhary and another DATE OF JUDGMENT: 27\/05\/2008 BENCH: S.B. SINHA & LOKESHWAR SINGH PANTA JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-174975","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nVimal Chadha vs Vikas Choudhary And Another on 27 May, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vimal-chadha-vs-vikas-choudhary-and-another-on-27-may-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vimal Chadha vs Vikas Choudhary And Another on 27 May, 2008 - 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